11470 Federal Register / Vol. 73, No. 42 / Monday, March 3, 2008 / Rules and Regulations 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 1212 

[Docket No. AMS–FV–06–0176; FV–03–704– 

FR–2B] 

RIN 0581–AC37 

Honey Packers and Importers 

Research, Promotion, Consumer 

Education and Industry Information 

Order; Referendum Procedures 

AGENCY: Agricultural Marketing Service, 

Agriculture, USDA. 

ACTION: Final rule. 

SUMMARY: This rule establishes 

procedures which the Department of 

Agriculture (USDA or the Department) 

will use in conducting a referendum to 

determine whether the issuance of the 

proposed Honey Packers and Importers 

Research, Promotion, Consumer 

Education and Industry Information 

Order (Order) is favored by first 

handlers and importers of honey or 

honey products. The Order will be 

implemented if it is approved by a 

majority of the eligible first handlers 

and importers voting in the referendum, 

which also represents a majority of the 

volume of honey and honey products 

handled and imported during the 

representative period. These procedures 

will also be used for any subsequent 

referendum under the Order, if it is 

approved in the initial referendum. The 

proposed Order is being published 

separately in this issue of the Federal 

Register. This proposed program would 

be implemented under the Commodity 

Promotion, Research, and Information 

Act of 1996. 

DATES: Effective Date: March 4, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Kathie M. Notoro, Marketing Specialist, 

Research and Promotion Branch, FV, 

AMS, USDA, Stop 0244, Room 0632-S, 

1400 Independence Avenue, SW., 

Washington, DC 20250–0244; telephone 

202–720–9915 or (888) 720–9917 (toll 

free) or e-mail kathie.notoro@usda.gov. 

SUPPLEMENTARY INFORMATION: A 

referendum will be conducted among 

eligible first handlers and importers of 

honey or honey products to determine 

whether they favor issuance of the 

proposed Honey Packers and Importers 

Research, Promotion, Consumer 

Education and Industry Information 

Order (Order) [7 CFR part 1212]. The 

program will be implemented if it is 

approved by a majority of the first 

handlers and importers voting in the 

referendum, which also represents a 

majority of the volume of honey and 

honey products handled and imported 

during the representative period. The 

Order is authorized under the 

Commodity Promotion, Research, and 

Information Act of 1996 (Act) [7 U.S.C. 

7411–7425]. It would cover domestic 

first handlers and importers of honey 

and honey products of 250,000 pounds 

or more. A proposed rule and 

referendum order is being published 

separately in this issue of the Federal 

Register. 

Prior documents: Proposed rules on 

both the Order [72 FR 30923] and the 

Referendum Procedures [72 FR 30940] 

were published in the Federal Register 

on June 4, 2007, with a 60-day comment 

period. 

Executive Order 12866 

This rule has been determined to be 

not significant for purposes of Executive 

Order 12866 and, therefore, has not 

been reviewed by OMB. 

Executive Order 12988 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. It is not intended to have 

retroactive effect. 

Section 524 of the Act provides that 

the Act shall not affect or preempt any 

other Federal or State law authorizing 

promotion or research relating to an 

agricultural commodity. 

Under Section 519 of the Act, a 

person subject to an order may file a 

petition with USDA stating that an 

order, any provision of an order, or any 

obligation imposed in connection with 

an order, is not established in 

accordance with the law, and may 

request a modification of an order or an 

exemption from an order. Any petition 

filed challenging an order, any 

provision of an order, or any obligation 

imposed in connection with an order, 

shall be filed within two years after the 

effective date of an order, provision or 

obligation subject to challenge in the 

petition. The petitioner will have the 

opportunity for a hearing on the 

petition. Thereafter, USDA will issue a 

ruling on the petition. The Act provides 

that the district court of the United 

States for any district in which the 

petitioner resides or conducts business 

shall be the jurisdiction to review a final 

ruling on the petition, if the petitioner 

files a complaint for that purpose not 

later than 20 days after the date of entry 

of USDA’s final ruling. 

Final Regulatory Flexibility Analysis 

In accordance with the Regulatory 

Flexibility Act (RFA) [5 U.S.C. 601 et 

seq.], the Agency is required to examine 

the impact of this rule on small entities. 

The purpose of the RFA is to fit 

regulatory actions to the scale of 

businesses subject to such action so that 

small businesses will not be 

disproportionately burdened. 

The Act, which authorizes the 

Department to consider industry 

proposals for generic programs of 

promotion, research, and information 

for agricultural commodities, became 

effective on April 4, 1996. The Act 

provides for alternatives within the 

terms of a variety of provisions. 

Paragraph (e) of Section 518 of the Act 

provides three options for determining 

industry approval of a new research and 

promotion program: (1) By a majority of 

those persons voting; (2) by persons 

voting for approval who represent a 

majority of the volume of the 

agricultural commodity; or (3) by a 

majority of those persons voting for 

approval who also represent a majority 

of the volume of the agricultural 

commodity. In addition, Section 518 of 

the Act provides for referenda to 

ascertain approval of an order to be 

conducted either prior to its going into 

effect or within three years after 

assessments first begin under an order. 

The National Honey Packers and 

Dealers Association (Association) has 

recommended that the Department 

conduct a referendum in which 

approval of an order would be based on 

a majority of the first handlers and 

importers voting who also represent a 

majority of the volume voting in the 

referendum. The Department is 

conducting a referendum prior to the 

proposed Order going into effect. 

This rule establishes the procedures 

under which first handlers and 

importers of honey or honey products 

will vote on whether they want a honey 

promotion, research, and information 

program to be implemented. This rule 

adds a new subpart which establishes 

procedures to conduct initial and future 

referenda. The subpart covers 

definitions, voting instructions, use of 

subagents, ballots, the referendum 

report, and confidentiality of 

information. 

There are approximately 45 first 

handlers and 30 importers of honey and 

honey products who would be subject to 

the program and eligible to vote in the 

first referendum. The Small Business 

Administration [13 CFR 121.201] 

defines small agricultural service firms 

as those having annual receipts of $6.5 

million or less. First handlers and 

importers would be considered 

agricultural service firms. Using these 

criteria, most first handlers would be 

considered small businesses while most 

importers would not. 

National Agricultural Statistic Service 

(NASS) data reports that U.S. 


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production of honey, from producers 

with five or more colonies, totaled 155 

million pounds in 2006. The top ten 

producing States in 2006 included 

North Dakota, South Dakota, California, 

Florida, Minnesota, Montana, Texas, 

Wisconsin, Idaho, and New York. To 

avoid disclosing data for individual 

operations, NASS statistics do not 

include Connecticut, Delaware, 

Maryland, Massachusetts, New 

Hampshire, Oklahoma, Rhode Island, 

and South Carolina. NASS reported the 

value of honey sold in 2006 was 

$161,314,000. Honey prices increased 

during 2006 to 104.2 cents, up 14 

percent from 91.8 cents in 2005. 

There is a current Honey Research, 

Promotion, and Consumer Information 

Program in effect (7 CFR part 1240). 

Based on the assessment reports in 

connection with the current honey 

program, four countries account for 72 

percent of the honey and honey 

products imported into the United 

States. These countries and their share 

of the imports are: China (28%); 

Argentina (21%); Vietnam (13%); and 

Canada (10%). Other countries 

combined totaled 28 percent of honey 

and honey products imported to the 

United States. In 2006, 155 million 

pounds of honey were produced in the 

United States, 279.4 million pounds 

were imported and 7.6 million pounds 

were exported. 

This rule provides the procedures 

under which first handlers and 

importers of honey or honey products 

will vote on whether they want the 

Order to be implemented. In accordance 

with the provisions of the Act, 

subsequent referenda may be 

conducted, and it is anticipated that 

these procedures will apply. There are 

approximately 45 first handlers and 30 

importers who will be eligible to vote in 

the first referendum. First handlers and 

importers of less than 250,000 pounds 

of honey and honey products annually 

would be exempt from assessments and 

not eligible to vote in the referendum. 

USDA will keep these individuals 

informed throughout the program 

implementation and referendum process 

to ensure that they are aware of and are 

able to participate in the program 

implementation process. USDA will 

also publicize information regarding the 

referendum process so that trade 

associations and related industry media 

can be kept informed. 

Voting in the referendum is optional. 

However, if first handlers and importers 

choose to vote, the burden of voting will 

be offset by the benefits of having the 

opportunity to vote on whether or not 

they want to be covered by the program. 

The information collection 

requirements contained in this rule are 

designed to minimize the burden on 

first handlers and importers. This rule 

provides for a ballot to be used by 

eligible first handlers and importers to 

vote in the referendum. The estimated 

annual cost of providing the information 

by an estimated 45 first handlers and for 

an estimated 30 importers would be 

$45.00 for all first handlers or $1.00 per 

first handler and $30.00 for all 

importers or $1.00 per importer. 

USDA considered requiring eligible 

voters to vote in person at various 

USDA offices across the country. USDA 

also considered electronic voting, but 

the use of computers is not universal. 

Conducting the referendum from one 

central location by mail ballot will be 

more cost effective and reliable. USDA 

will provide easy access to information 

for potential voters through a toll free 

telephone line. 

With the exception of the Current 

Order’s referendum rules, there are no 

federal rules that duplicate, overlap, or 

conflict with this rule. 

Paperwork Reduction Act 

In accordance with the OMB 

regulation [5 CFR 1320] which 

implements the Paperwork Reduction 

Act of 1995 [44 U.S.C. Chapter 35], the 

referendum ballot, which represents the 

information collection and 

recordkeeping requirements that may be 

imposed by this rule, was submitted to 

OMB for approval and will be approved 

under OMB Number 0581–NEW. 

Title: Honey Packers and Importers 

Research, Promotion, Consumer 

Education and Industry Information 

Order. 

OMB Number: 0581–NEW. 

Expiration Date of Approval: 3 years 

from OMB date of approval. 

Type of Request: New information 

collection for research and promotion 

programs. 

Abstract: The information collection 

requirements in this request are 

essential to carry out the intent of the 

Act, to provide the respondents the type 

of service they request, and to 

administer the Order. The ballot is 

needed for the referendum that will be 

held to determine whether first handlers 

and importers are in favor of the 

program. The information collected is 

used by USDA to determine whether a 

majority of the eligible first handlers 

and importers voting in a referendum, 

who also represent a majority of the 

volume of honey and honey products 

approve of this program. 

Referendum Ballot 

Estimate of Burden: Public reporting 

burden for this collection of information 

is estimated to average 0.25 hours per 

response for each first handler and 

importer. 

Respondents: First handlers and 

importers. 

Estimated Number of Respondents: 

75. 

Estimated Number of Responses per 

Respondent: 1 every 5 years (0.2). 

Estimated Total Annual Burden on 

Respondents: 3.75 hours. 

The ballot will be added to the other 

information collections approved for 

use under OMB Number 0581–NEW. 

The estimated annual cost of 

providing the information by an 

estimated 45 first handlers would be 

$45.00 or $1.00 per first handler and for 

an estimated 30 importers would be 

$30.00 or $1.00 per importer. 

Background 

The Act, which became effective on 

April 4, 1996, authorizes the 

Department to establish a national 

research and promotion program 

covering domestic and imported honey 

and honey products. The Association 

submitted a proposed Order on March 

17, 2006. After a number of 

modifications were made by AMS to the 

Association’s petition, a proposed rule 

requesting comments was published in 

the Federal Register [7 CFR 30923] on 

June 4, 2007. A second proposal 

addressing the comments received is 

being published in this issue of the 

Federal Register. 

The proposed Order would provide 

for the development and financing of an 

effective and coordinated program of 

promotion, research, and consumer and 

industry information for honey and 

honey products in the United States. 

The program would be funded by an 

assessment levied on first handlers and 

importers (to be collected by United 

States Customs and Border Protection, 

referred to as U.S. Customs Service, at 

time of entry into the United States) at 

an initial rate of 1 cent per pound. First 

handlers and importers of less than 

250,000 pounds of honey and honey 

products per year would be exempt 

from paying assessments. The 

assessments would be used to pay for 

promotion, research, and consumer and 

industry information; administration, 

maintenance, and functioning of the 

Honey Packers and Importers Board; 

and expenses incurred by the 

Department in implementing and 

administering the Order, including 

referendum costs. 

Section 1206 of the Act requires that 

a referendum be conducted among 


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eligible first handlers and importers of 

honey or honey products to determine 

whether they favor implementation of 

the Order. That section also requires the 

Order to be approved by a majority of 

the first handlers and importers voting, 

who also represent a majority of the 

volume of honey and honey products 

handled and imported during the 

representative period. 

This final rule establishes the 

procedures under which first handlers 

and importers of honey or honey 

products will vote on whether they 

want the honey packer and importer 

promotion, research, and information 

program to be implemented. There are 

approximately 75 eligible voters. 

This action adds a new subpart 

establishing procedures to be used in 

this and future referenda. This subpart 

covers definitions, voting, instructions, 

and use of subagents, ballots, the 

referendum report, and confidentiality 

of information. 

Proposed referendum procedures 

were published in the Federal Register 

on June 4, 2007, [72 FR 30940]. Copies 

of the rule were made available by 

USDA and the Office of the Federal 

Register, and was also available via the 

Internet at www.regulations.gov. The 

rule provided a 60-day comment period 

ending on August 3, 2007. There were 

no comments received by the deadline. 

A nonsubstantive change has been made 

to the proposed regulation for clarity 

concerning the U.S. Customs Service. 

It is found that good cause exists for 

not postponing the effective date of this 

rule until 30 days after publication in 

the Federal Register (5 U.S.C. 553) 

because given the existence of the 

Current Program, a referendum should 

be conducted as soon as possible. 

List of Subjects in 7 CFR Part 1212 

Administrative practice and 

procedure, Advertising, Consumer 

Education, Honey and Honey products, 

Marketing agreements, Promotion, 

Reporting and recordkeeping 

requirements. 

■ For the reasons set forth in the 

preamble, Title 7, Chapter XI of the 

Code of Federal Regulations is amended 

by adding part 1212 to read as follows: 

PART 1212—HONEY PACKERS AND 

IMPORTERS RESEARCH, 

PROMOTION, CONSUMER 

EDUCATION AND INDUSTRY 

INFORMATION ORDER 

Subpart A—[Reserved] 

Subpart B—Referendum Procedures 

Sec. 

1212.100 General. 

1212.101 Definitions. 

1212.102 Voting. 

1212.103 Instructions. 

1212.104 Subagents. 

1212.105 Ballots. 

1212.106 Referendum report. 

1212.107 Confidential information. 

1212.108 OMB control number. 

Authority: 7 U.S.C. 7411–7425 

Subpart B—Referendum Procedures 

§ 1212.100 General. 

Referenda to determine whether 

eligible first handlers and importers of 

honey and honey products favor the 

issuance, continuance, amendment, 

suspension, or termination of the Honey 

Packers and Importers Research, 

Promotion, Consumer Education, and 

Industry Information Order shall be 

conducted in accordance with this 

subpart. 

§ 1212.101 Definitions. 

(a) Administrator means the 

Administrator of the Agricultural 

Marketing Service, with power to redelegate, or any officer or employee of 

the U.S. Department of Agriculture to 

whom authority has been delegated or 

may hereafter be delegated to act in the 

Administrator’s stead. 

(b) Department means the U.S. 

Department of Agriculture or any officer 

or employee of the Department to whom 

authority has heretofore been delegated, 

or to whom authority may hereafter be 

delegated, to act in the Secretary’s stead. 

(c) Eligible first handler means any 

person (excluding a common or contract 

carrier) who handled 250,000 or more 

pounds of domestic honey and honey 

products during the representative 

period, who first buys or takes 

possession of honey or honey products 

from a producer for marketing. If a 

producer markets the honey directly to 

consumers, the producer shall be 

considered the first handler with respect 

to the honey produced by the producer. 

(d) Eligible importer means any 

person who imports 250,000 or more 

pounds of honey and honey products 

into the United States as a principal or 

as an agent, broker, or consignee of any 

person who produces or handles honey 

or honey products outside of the United 

States for sale in the United States, and 

who is listed as the importer of record 

for such honey or honey products that 

are identified in the Harmonized Tariff 

Schedule of the United States by the 

numbers 0409.00.00 and 2106.90.9988, 

during the representative period. 

Importation occurs when honey or 

honey products originating outside of 

the United States are released from 

custody by the United States Customs 

and Border Protection, referred to as the 

U.S. Customs Service, and introduced 

into the stream of commerce in the 

United States. Included are persons who 

hold title to foreign produced honey or 

honey products immediately upon 

release by the U.S. Customs Service, as 

well as any persons who acts on behalf 

of others, as agents or brokers, to secure 

the release of honey or honey products 

from the U.S. Customs Service when 

such honey or honey products are 

entered or withdrawn for consumption 

in the United States. 

(e) Handle means to process, package, 

sell, transport, purchase or in any other 

way place honey or honey products, or 

cause them to be placed, in commerce. 

This term includes selling unprocessed 

honey that will be consumed without 

further processing or packaging. This 

term does not include the transportation 

of unprocessed honey by the producer 

to a handler or transportation by a 

commercial carrier of honey, whether 

processed or unprocessed for the 

account of the first handler or producer. 

(f) Honey means the nectar and 

saccharine exudations of plants that are 

gathered, modified, and stored in the 

comb by honeybees, including comb 

honey. 

(g) Honey products mean products 

where honey is a principal ingredient. 

For purposes of this subpart, a product 

shall be considered to have honey as a 

principal ingredient, if the product 

contains at least 50 percent honey by 

weight. 

(h) Order means the Honey Packers 

and Importers Research, Promotion, 

Consumer Education and Industry 

Information Order. 

(i) Person means any individual, 

group of individuals, partnership, 

corporation, association, cooperative, or 

any other legal entity. For the purpose 

of this definition, the term 

‘‘partnership’’ includes, but is not 

limited to: 

(1) A husband and a wife who have 

title to, or leasehold interest in, honey 

bee colonies or beekeeping equipment 

as tenants in common, joint tenants, 

tenants by the entirety, or, under 

community property laws, as 

community property; and 

(2) So-called ‘‘joint ventures’’ wherein 

one or more parties to an agreement, 

informal or otherwise, contributed land 

and others contributed capital, labor, 

management, equipment, or other 

services, or any variation of such 

contributions by two or more parties, so 

that it results in the production, 

handling, or importation of honey or 

honey products for market and the 

authority to transfer title to the honey or 

honey products so produced, handled or 

imported. 


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(j) Referendum agent or agent means 

the individual or individuals designated 

by the Department to conduct the 

referendum. 

(k) Representative period means the 

period designated by the Department. 

(l) United States or U.S. means 

collectively the 50 states, the District of 

Columbia, the Commonwealth of Puerto 

Rico, and the territories and possessions 

of the United States. 

§ 1212.102 Voting. 

(a) Each eligible first handler and 

eligible importer of honey or honey 

products shall be entitled to cast only 

one ballot in the referendum. 

(b) Proxy voting is not authorized, but 

an officer or employee of an eligible 

corporate first handler or importer, or an 

administrator, executor, or trustee or an 

eligible entity may cast a ballot on 

behalf of such entity. Any individual so 

voting in a referendum shall certify that 

such individual is an officer or 

employee of the eligible entity, or an 

administrator, executive, or trustee of an 

eligible entity and that such individual 

has the authority to take such action. 

Upon request of the referendum agent, 

the individual shall submit adequate 

evidence of such authority. 

(c) All ballots are to be cast by mail, 

as instructed by the Department. 

§ 1212.103 Instructions. 

(a) Referenda. The Order shall not 

become effective unless the Department 

determines that the Order is consistent 

with and will effectuate the purposes of 

the Act; and for initial and subsequent 

referenda the Order is favored by a 

majority of eligible persons voting in the 

referendum and a majority of volume 

voting in the referendum who, during a 

representative period determined by the 

Department, have been engaged in the 

handling or importation of honey or 

honey products and are subject to 

assessments under this Order and 

excluding those exempt from 

assessment under the Order. 

(b) The referendum agent shall 

conduct the referendum, in the manner 

provided in this subpart, under the 

supervision of the Administrator. The 

Administrator may prescribe additional 

instructions, not inconsistent with the 

provisions of this subpart, to govern the 

procedure to be followed by the 

referendum agent. Such agent shall: 

(1) Determine the period during 

which ballots may be cast. 

(2) Provide ballots and related 

material to be used in the referendum. 

The ballot shall provide for recording 

essential information, including that 

needed for ascertaining whether the 

person voting, or on whose behalf the 

vote is cast, is an eligible voter. 

(3) Give reasonable public notice of 

the referendum: 

(i) By utilizing available media or 

public information sources, without 

incurring advertising expense, to 

publicize the dates, places, method of 

voting, eligibility requirements, and 

other pertinent information. Such 

sources of publicity may include, but 

are not limited to, print and radio; and 

(ii) By such other means as the agent 

may deem advisable. 

(4) Mail to eligible first handlers and 

importers whose names and addresses 

are known to the referendum agent, the 

instructions on voting, a ballot, and a 

summary of the terms and conditions of 

the proposed Order. No person who 

claims to be eligible to vote shall be 

refused a ballot. 

(5) At the end of the voting period, 

collect, open, number, and review the 

ballots and tabulate the results in the 

presence of an agent of a third party 

authorized to monitor the referendum 

process. 

(6) Prepare a report on the 

referendum. 

(7) Announce the results to the 

public. 

§ 1212.104 Subagents. 

The referendum agent may appoint 

any individual or individuals necessary 

or desirable to assist the agent in 

performing such agent’s functions of 

this subpart. Each individual so 

appointed may be authorized by the 

agent to perform any or all of the 

functions which, in the absence of such 

appointment, shall be performed by the 

agent. 

§ 1212.105 Ballots. 

The referendum agent and subagents 

shall accept all ballots cast. However, if 

an agent or subagent deems that a ballot 

should be challenged for any reason, the 

agent or subagent shall endorse above 

their signature, on the ballot, a 

statement to the effect that such ballot 

was challenged, by whom challenged, 

the reasons therefore, the results of any 

investigations made with respect 

thereto, and the disposition thereof. 

Ballots invalid under this subpart shall 

not be counted. 

§ 1212.106 Referendum report. 

Except as otherwise directed, the 

referendum agent shall prepare and 

submit to the Administrator a report on 

the results of the referendum, the 

manner in which it was conducted, the 

extent and kind of public notice given, 

and other information pertinent to the 

analysis of the referendum and its 

results. 

§ 1212.107 Confidential information. 

The ballots and other information or 

reports that reveal, or tend to reveal, the 

vote of any person covered under the 

Order and the voter list shall be strictly 

confidential and shall not be disclosed. 

§ 1212.108 OMB control number. 

The control number assigned to the 

information collection requirement in 

this subpart by the Office of 

Management and Budget pursuant to the 

Paperwork Reduction Act of 1995, 44 

U.S.C. Chapter 35 is OMB control 

number 0505–0001, OMB control 

number 0581–0217, and OMB control 

number 0581-[NEW, to be assigned by 

OMB]. 

Dated: February 26, 2008. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 08–899 Filed 2–26–08; 3:31 pm] 

BILLING CODE 3410–02–P 


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